Uncertainty in the courts doesn’t promote order (TX)

While Congress and the president spent weeks and months engaged in fiscal “chicken,” the third branch felt the uncertainty as though it were any other federal agency and not a constitutionally co-equal partner in government.

More than 30 nominees to federal judgeships never received Senate votes, even though most were thoroughly non-controversial and the inaction left some courts seriously understaffed.

Court clerks notified lawyers and litigants about potential service reductions if mandatory funding cuts were allowed to take effect for lack of a budget deal.

Frustrated federal judges filed a class action complaint against the government seeking unpaid cost-of-living adjustments that Congress promised but then didn’t pay.

In his year-end report on the judiciary, Supreme Court Chief Justice John Roberts made it sound as though the courts were simultaneously neutral observers to the “problem of a truly extravagant and burgeoning national debt” and loyal team players. But that might be misleading.

Winding a yarn about a mythical sailor on the USS Constitution, a frigate “durable but economical, nimble yet powerful,” Roberts used it as a metaphor for the legal Constitution’s durability. But he also got around to what he described as the courts’ “aggressive cost-containment strategy.”

“We in the judiciary stand outside the political arena, but we continue to do our part to address the financial challenges without our sphere,” he said, noting that “the Judicial Branch continues to consume a miniscule portion of the federal budget.” (1.usa.gov/TtoVts)

In the last fiscal year, operating the federal judiciary cost the American people about $6.97 billion (not counting fees): or about two-tenths of a penny from each tax dollar, by Roberts’ math.

He said the Supreme Court plans to cut its appropriations request for 2014 to $74.89 million (from $77.16 million in fiscal 2013) but that the courts can’t economize much more than they have without hurting the quality of services.

“Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone,” he said, with the sort of polite but withering jab he’s so skilled at.

It’s notable that Roberts this year did not invoke the familiar theme of higher pay for federal judges. Instead, he urged the president and Congress to fill seats on the bench.

At the end of December, 27 vacancies were designated “judicial emergencies,” meaning the position has been open more than 18 months and/or the court has an especially large number of filings.

The courts counted a total of 77 openings on the district and appellate courts and the Court of International Trade as of Thursday, when President Barack Obama resubmitted 33 nominations that the Senate did not vote on before they expired Dec. 31. (Thirteen judges were approved in December, most by voice vote or unanimous consent.) In some cases, “senior status” judges continue handling limited caseloads, but some seats are empty.

There are two vacancies on the 5th U.S. Circuit Court of Appeals, which covers Texas, and the state has five district court openings, the longest-standing being the seat of Judge Royal Furgeson Jr. of Dallas, who took senior status in November 2008.

Furgeson is otherwise notable for being the dean-designate of the UNT Dallas College of Law, due to open in August 2014, and as being among six plaintiffs in a class action filed Nov. 30 seeking back pay for salary adjustments they claim they were unconstitutionally denied. (bit.ly/ULytQD)

Democrats have complained about Republicans blocking votes on nominees for reasons having nothing to do with their qualifications, while Republicans have complained that Obama has dragged his feet on nominating judges.

A Dec. 13 Brookings Institution report found that Obama’s nominees on average waited much longer for floor votes after their Senate Judiciary Committee hearings than those of Presidents Bill Clinton or George W. Bush during their first terms. However, Bush’s nominees waited the longest from nomination to hearing. (bit.ly/ZchQSU)

Needless skirmishing over judicial nominations is a problem the Senate must address so nominees aren’t left in limbo and courts have the personnel they need to operate. No one wins from brinksmanship here.


Uncertainty in the courts doesn’t promote order
Star-Telegram Editorial
January 5, 2013